Thirteen federal agencies released a report in November 2017 in which they conclude that humans are the primary cause of climate change. The report, entitled Climate Science Special Report, is of particular concern to Long Islanders, many of whom live by, work near, or enjoy the coast. Another report, issued at the end of November 2017 by the Regional Plan Association (RPA) entitled Fourth Regional Plan – Making the Region Work For All of Us, also addresses climate change and provides a path for the tri-states to collectively address the impacts of climate change.

According to the RPA, there are 167 local governments and over 3,700 miles of tidal coastline in the tri-state region. The RPA suggests that the region’s response to climate change is hampered by four limiting impediments. First, the RPA notes that there is no plan or budget for regional coastal adaptation projects. Second, the RPA notes that most of the region’s local governments lack the staff and resources to address climate change. Third, the RPA notes that although coastal flooding is a regional problem, planning does not occur on a regional level. Rather, it is done on a local basis, resulting in a hodgepodge of conflicting rules, policies and guidelines. Fourth, the RPA notes that the three states have inconsistent coastal zone management programs.

In New York, the New York State Department of State (NYSDOS) administers New York’s coastal zone management program. According to the RPA, New Jersey’s coastal zone management program primarily relies on federal funding. The RPA notes that Connecticut’s coastal zone management program primarily involves the issuance and approval of permits. While these programs are all different, according to the RPA, they share one similar trait. They each have limited power to regulate land use.

The RPA notes that the New York and Connecticut coastal zone management programs address only certain aspects of climate change. For example, the NYSDOS and the New York State Department of Environmental Conservation developed model local laws that consider risk from sea level rise, storm surge, and flooding and developed guidance on how coastal areas can use natural resources and processes to deal with those problems. Connecticut requires that planners and developers consider the potential impact of sea level rise, coastal flooding, and erosion patterns on coastal development.

The RPA recommends that New York, New Jersey, and Connecticut create a “regional coastal commission” as a way to address climate change on a regional basis. The RPA envisions the function of this regional coastal commission as follows: (1) producing a regional coastal adaptation plan that is not limited by state or local boundaries; (2) developing science-based standards for coastal development; and (3) coordinating collaborative cross-border projects. The RPA suggests that this can be accomplished through adaptation trust funds that are initially funded by surcharges on insurance policy premiums.

The RPA recommends several “best practices” for the regional coastal commission, primarily to keep it free from political influence. These best practices include structuring the commission according to specialization and subject areas. The RPA also suggests using a “neutral facilitator” to help members work through their differences. The RPA also suggests that the commission have an independent advisory science committee and a central data repository. The RPA further suggests that the trust funds be invested in a “diversified funding portfolio” as a means to becoming financially sustaining, rather than relying upon government funding.

The RPA notes there are role models for successful regional commissions, including the San Francisco Bay Conservation and Development Commission, the Louisiana Coastal Protection and Restoration Authority, the Bay Area Regional Collaborative, the Interstate Environmental Commission in New York, New Jersey, and Connecticut, and the multi-state Chesapeake Bay Program.

It remains to be seen whether these three states will agree to establish a regional coastal commission, which would require them to cede certain powers to this commission for the purpose of adapting their coastlines for climate change.

In December 2016, Norwegian developer Statoil won a bid to lease 79,000 acres of underwater land from the federal government for wind energy development.  Statoil’s  wind energy project will be located approximately fourteen miles south of Long Beach and the Rockaways and will extend out to a distance of 30 miles.  The project, to be known as Empire Wind, contemplates erecting 80 to 100 turbines and anticipates producing up to 1,000 megawatts – enough energy to power upwards of one million homes.  Statoil anticipates commencing construction in 2021 and completing construction in 2024.

As part of New York’s plan to reach 50% renewable energy sources by 2030, the State has continued to research, test and identify off-shore areas for wind energy development.  In October 2017, New York identified more than one million acres for the development for future wind farm projects.

Empire Wind hopes to join another wind energy project currently in the planning stages, a 90-megawatt wind farm project located off Long Island’s east end.

In 2009, Scenic Development, LLC (“Scenic”) sought a zone change for the property formerly known as the “Patrick Farm” located in the Town of Ramapo to permit the development of multi-family housing. In three determinations adopted January 25, 2010, the Town Board resolved to (i) approve a findings statement pursuant to the State Environmental Quality Review Act (“SEQRA”) for the proposed zone change, (ii) amend the Comprehensive Plan to allow for the zone change, and (iii) approve the zone change. The Town’s determinations have led to a series of cases challenging these decisions, with three recent decisions discussed below.

Scenic purchased the property in 2001.  The underlying zoning of the property was R-80 when Scenic purchased the property and was subsequently changed to R-40, or one house per 40,000 square feet, when the Town adopted its 2004 Comprehensive Plan. In 2009, when it sought the zone change, Scenic proposed to build 479 housing units on 197 acres of the former farm along the Route 202/306 corridor outside Pomona. Therefore, the zone change would have dramatically increased the density permitted on the property.

Although the project still has not come to fruition, with some additional environmental review as discussed below, the project may still be viable.

Youngewirth v. Town Board of Ramapo

In Matter of Youngewirth v. Town of Ramapo Town Board et al., decided November 8, 2017, the Appellate Division, Second Department reversed the Supreme Court’s, May 8, 2013 determination which denied the petition and dismissed the proceeding. The appellate court annulled the determinations of the Town Board and remitted the matter back to the Town Board for further proceedings consistent with the decision. Specifically, the Court found that the Town Board did not take the requisite “hard look” pursuant to SEQRA because of its (i) failure to review the environmental impact of the proposed development in close proximity to the existing Columbia Natural Gas Pipeline, (ii) failure to consider the combined impact of the development and pipeline on the environment, (iii) failure to list Columbia Gas as an “interested agency” pursuant to SEQRA, and (iv) failure to make a “reasoned elaboration” for the basis of its determination regarding this issue by not mentioning the potential impacts in its FEIS or findings statement.

The Court, however, sided with the Town on petitioner’s claim that the zone change was in conflict with the Comprehensive Plan and found that petitioner failed to establish a clear conflict with the Comprehensive Plan. The Court also found that petitioner failed to establish that the zone change constituted impermissible spot zoning. The Court further noted that requiring a certain number of affordable housing units was consistent with the Comprehensive Plan and was a reasonable condition related to and incidental to the property. However, because the Court found that the approval for the findings statement pursuant to SEQRA was required prior to amending the Comprehensive Plan or granting the proposed zone change, the annulment of the resolution approving the SEQRA findings statement required the annulment of the determinations regarding the Comprehensive Plan and proposed zone change.   Ultimately, the Court remitted the matter back to the Town Board for preparation of a Supplemental Environmental Impact Statement (“SEIS”) to consider the issues related to the gas pipeline.

Shapiro v. Ramapo Planning Board

In the related case of Matter of Shapiro v. Planning Board of Town of Ramapo et al., decided November 8, 2017, the Appellate Division, Second Department likewise annulled the Supreme Court’s determinations and remitted the matter back to the Planning Board for further review consistent with its decision.  The Planning Board approved Scenic’s three separate applications for final subdivision and site plan approval of three housing projects as part of Scenic’s proposed development of the property.  Here, petitioner alleged that a SEIS was required in connection with the SEQRA review conducted for the proposed development because the applicant, Scenic, failed to obtain a jurisdictional determination from the United States Army Corps of Engineers (“ACOE”) validating the delineation of wetlands on the property. The Court outlined that a lead agency’s determination whether to require an SEIS is discretionary. Specifically, SEQRA in section 6 NYCRR 617.9(a)(7(ii) provides, “the lead agency may require a supplemental EIS limited to the specific adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from (a) changes proposed for the project, (b) newly discovered information, or (c) a change in circumstances related to the project”. Here, petitioners alleged that the Planning Board failed to consider newly discovered information having received a letter indicating that the ACOE reviewed the development plans but not the wetlands delineation. The applicant was required to obtain the ACOE’s jurisdictional wetlands delineation and the Planning Board was required to rely on the ACOE’s federal wetland delineation since wetlands were excluded in part from the yield calculations related to the proposed development. Thus the Court found that the Planning Board failed to take the requisite hard look pursuant to SEQRA and remitted the matter back to the Board for the preparation of an SEIS regarding the presence of wetlands on the property.

Village of Pomona v. Town of Ramapo

The neighboring Village of Pomona also sued the Town Board and Planning Board of Ramapo in two separate actions in which the Supreme Court denied the petitions and dismissed the proceedings. On November 8, 2017, The Appellate Division, Second Department reversed these determinations related to the Scenic proposal as well in Village of Pomona v. Town of Ramapo et al. Here, although the Court found that the Town of Ramapo adequately considered the effect of the proposed development on community character and complied with General Municipal Law §239-m(3) by providing a point-by-point response to the Village’s comments on the application, the Court determined that the lower court should have granted the Village’s petition based on the reasons stated in the Youngewirth decision referenced above.

In all, there have been approximately ten challenges over the years related to the Town of Ramapo’s approvals of Scenic’s proposed development. Although the local land preservation groups claim the recent court decisions as a total win, the Appellate Division made significant findings in support of the Town of Ramapo’s review and reversed the Supreme Court’s determinations on very specific grounds, which, if addressed correctly by the Town, could result in the multi-family development being built.

 

 

A recent decision by the Appellate Division decided that a village zoning code was inapplicable to a water district. As a result, the water district was able to proceed with replacement of one of its massive elevated water storage tanks and the village was powerless to use its zoning powers to either stop the construction or impose restrictions on the structure.

The case, Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 57 NY3d 154 [2d Dep’t 2017], involved a special district located within the Town of North Hempstead. The special district, the Manhasset-Lakeville Water District, supplies potable water to consumers located within the district’s boundaries. The water district uses its elevated water storage tanks to store water and maintain water pressure. One of the district’s storage tanks is on property owned by the water district that is located within the boundaries of the Village of Munsey Park (“Village”).

The elevated water storage tank in question was built in 1929. The water district determined it was in need of replacement in 2014. The water district developed a plan to replace the 1929 storage tank and held two public hearings about its proposal. Village officials participated in these public hearings. The district revised the plan after the public hearings, partly to accommodate concerns of the Village and Village residents elicited at the hearings.

The finalized plan called for the replacement of the 1929 storage tank with a new tank that would hold 250,000 gallons more than the 1929 tank. In addition, an antennae was proposed to be installed on the new tank to facilitate wireless communication between the district facilities, its employees, and volunteer firemen. The water district determined that the proposed construction plan was immune from the Village zoning code, based upon the principles enumerated in Matter of County of Monroe (City of Rochester), 533 NY 2d 702 [1988].

The Village sued. It sought a declaratory judgment and permanent injunction to prevent the demolition of the 1929 tank and construction of the replacement tank, claiming that the 30 foot height restriction contained in the Village zoning code would be violated by this structure. The trial court ruled in favor of the water district, a finding that was affirmed by the Second Department.

The appellate court discussed the City of Monroe case, in which the Court of Appeals dealt with the applicability of a local zoning code where two governmental entities are in conflict over a proposed project. The Court of Appeals set forth a balancing test in that case to determine if there is immunity from the local zoning code for the other governmental entity. These factors include: (1) the nature and scope of the governmental entity seeking immunity from the local zoning code, (2) the type of zoning restriction involved, (3) the extent of the public interest served by the local zoning code, (4) the effect that the local zoning code would have on the other governmental entity, and (5) the impact on local interests.

Using this balancing test, the Second Department determined that the water district was immune from the Village zoning code. The court further noted that the Village failed to set forth any basis for the Village’s contention that the Village had the exclusive right to evaluate the factors and make this immunity determination.

One other note. The water district  also determined that the project was a Type II action under the State Environmental Quality Review Act (“SEQRA”) and, thus, not subject to review under SEQRA. This finding was upheld by the trial and appellate courts. The Second Department explained that since the project involved the “replacement, rehabilitation or reconstruction of a structure or facility, in kind,” it was a Type II action under 6 NYCRR § 617.5[c][2], even though it was going to hold 250,000 more gallons than the 1929 tank.

Because of the essential service at issue in this case, the provision of a safe and reliable source of potable water, it is understandable why the courts would favor the water district over a height restriction in a local zoning code.  If the project involved something less vital, the result may have been different.

Week to week we blog about recent developments in the land use arena, which typically arise in the civil context.  This week, we thought a recent “criminal” case decided by the Supreme Court, Appellate Term, Second Department, was not only particularly interesting, but also, the topic of illegal rental permits is one that many land use practitioners grapple with multiple times during their legal careers.

On October 26, 2017, the Appellate Term decided People v Makrides, 2017 NY Slip Op 51442 (U).  In Makrides, the Village Code Enforcement Officer alleged that on August 20, 2014, he visited property located on Beach Street.  The door was answered by an individual who identified himself as a renter and of no relation to the owner, Marie Makrides, with Beach Street Properties.   Based on a further review of rental permit records, and the lack thereof, the Code Enforcement Officer issued an Information alleging that Makrides was in violation of Village Code Section 205-4, failure to obtain a rental occupancy permit.

The Code Enforcement Officer visited the property again on November 5, 2014; except for the testimony of the alleged renter, the Code Enforcement Officer found the property to again be in violation of  the rental occupancy permit ordinance.

Makrides’ attorney moved to dismiss the accusatory instruments for facial insufficiency (CPL 100.15; 100.40).  Specifically, it was argued that the accusatory instruments “failed to contain facts of an evidentiary nature . . . and that they” were improperly based upon hearsay allegations. The Justice Court denied the motion.

After a non-jury trial, the Court found Makrides to be in violation of the rental permit ordinance and fined her $5,000.00 for each charge.  Makrides appealed.

The Appellate Term reversed both convictions, finding that facial insufficiency is a nonwaivable jurisdictional prerequisite to a criminal prosecution (CPL 100.40).  Finding that the statement made by the renter to be hearsay, and not supported by a deposition, it was an error for the Justice Court to rely on said testimony.  The testimony of the renter is clearly an out of court statement introduced in court for the truth of the matter at hand, to wit; classic hearsay testimony.

Consequently, the Appellate Term held that without said hearsay testimony, the Informations alleging that the defendant failed to obtain a rental occupancy permit –  without saying why it was necessary for her to obtain one – failed to contain “factual allegations . . .  through nonhearsay allegations . . . of the offense charged and defendant’s commission thereof.”

Abiding by principles of judicial restraint, the Court declined to make a further finding that the Port Jefferson Village Rental Permit Ordinance was unconstitutional.  It did, however, require the Village to remit, if paid, the combined $10,000.00 fine to the defendant.

In the Village of Bayville, New York (“Village”), a landowner wished to enclose and protect private property (“Lot 18”) , including the roadway thereon, against trespassers and traffic.  The landowner sought to erect crash gates on both sides of its property and across the roadway to prevent public access.  The road upon Lot 18 forms a part of Shore Road (connecting the public part of the roadway north of Lot 18 with Godfrey Avenue farther to the south).  Notably, Lot 18 abuts Mill Neck Creek and preventing traffic and access across the portion of Shore Road located upon Lot 18 may provide unfettered access to the water.

In the summer of 2013, the landowner made applications to the building inspector for a fence permit to construct two twelve-foot wide crash gates across Shore Road at the north and south sides of Lot 18.  The building inspector denied the applications and the landowner appealed to the Zoning Board of Appeals (“Board”).  The Board denied the landowner’s appeal and the landowner commenced a hybrid Article 78 proceeding/action in the Supreme Court against the building inspector and the Board.

In addition to seeking a reversal of the denials and demanding issuance of the building permit for the fences, the landowner sought damages for inverse condemnation.  The landowner argued that the Village had exercised a taking by allowing public access through the private property and upon the private roadway (especially because the building inspector and the Board denied the landowner’s rights to prevent such access).

The trial court issued an initial decision of June 2014, inter alia,  (i) denying the landowner’s petition to reverse the denials and (ii) granting the building inspector’s and the Board’s motions to dismiss, including for failure to state a cause of action for inverse condemnation.  Afterwards, however, the trial court granted the landowner’s application for leave to reargue.  Upon reargument, the trial court’s later decision of December 2014, as clarified by its order of March 2015, affirmed its initial decision – except it denied the motion to dismiss the landowner’s claim for inverse condemnation.  The building inspector and the Board appealed the March 2015 clarification order.

Last month, the Appellate Division, Second Department, affirmed the trial court’s March 2015 clarification order.  The appeals court noted that “[t]he cause of action [for inverse condemnation] should not have been dismissed since [sic], inter alia, it stated a cause of action to recover for damages . . . .”  Accordingly, the landowner can pursue its cause of action for inverse condemnation against the Village where public access upon and across private property is sanctioned by denial of the ability to enclose and protect it.

Fire Island is a 32-mile long, slender barrier sand bar island located between the Atlantic Ocean and the South Shore of Long Island.  The island, which varies in width from as little as about 550 feet to not more than about 1,760 feet, divides the Great South Bay and the westerly end of Moriches Bay from the Atlantic Ocean.  In a letter report prepared by the Department of the Interior in 1963 for the Senate Committee on Interior and Insular Affairs, Fire Island was described as containing “an impressive array of seashore resources,” including beaches that are “wide, clean, and gently sloping” and dunes that are “imposing and usually well stabilized by beach grass, bayberry, other vegetation, and some lowlying pitch pine.”  See, 1964 U.S.Code Cong. & Adm. News, p. 3714.  The report referred to the sunken forest in the western half of the island as “a gem of its kind,” dominated by several hundred year-old American holly trees.

In apparent concern for the potential destruction of Fire Island’s unique environmental resources, Congress passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq. (“Act”) on September 11, 1964, which established the “Fire Island National Seashore” (“Seashore”).  The stated purpose of the Act was to conserve and preserve the Seashore’s “relatively unspoiled and undeveloped beaches, dunes, and other natural features.”

To achieve this objective, Congress provided the Secretary of the Interior (“Secretary”) with broad authority to condemn unimproved, privately-owned properties, and in limited situations, private properties that are being used in a manner that is inconsistent with any applicable standard contained in regulations promulgated under the Act.  The regulations, codified at 36 CFR Part 28, also set forth Federal standards to which local zoning ordinances must conform, articulating limitations on use, location, and size of structures on public and private property within the boundaries of the Seashore in order to reconcile the population density of the Seashore with the protection of its natural resources.

The Federal standards divide the Seashore into three distinct land use districts – the Community Development District, the Seashore District and the Dune District.  The Community Development District generally permits construction or expansion of existing residential units, religious institutions, schools and commercial units in existence before 1964.  The Seashore District permits alterations of existing improved properties, but prohibits new construction.  The Dune District prohibits all construction after 1978, except for dune crossing structures deemed necessary for public access to the beach.

Despite the Federal oversight, the Act does not preempt the four municipalities within the Seashore – the towns of Brookhaven and Islip, and the villages of Ocean Beach and Saltaire – from enacting and enforcing their own zoning regulations or granting variances and other zoning approvals.  Instead, the Act directs the Secretary to establish guidelines for local zoning authorities to use in developing local zoning regulations that conform to the Federal standards, as well as a process by which the Superintendent of the Fire Island National Seashore (“Superintendent”) shall receive copies of all applications for variances, exceptions, special permits, and permits for commercial and industrial uses, notices of all public hearings concerning said applications, and notices of the final action taken on such applications from the local zoning authorities.

The Secretary is charged with reviewing local zoning regulations to ensure that they are consistent with the Act and its implementing regulations.  The Secretary must disapprove any zoning ordinance or amendment thereof that he considers adverse to the protection and development of the Seashore, or which fails to include requirements that the Secretary receive notice of certain land use approvals and permits granted by the local zoning authority.  Properties that are developed in accordance with an approved ordinance, or which are the subject of variances and other land use approvals that result in such property being used in a manner that conforms to the Federal standards are protected from condemnation under the Act.  By 1985, the Secretary had approved compliance with Federal standards for the four zoning jurisdictions within the Seashore.

As a result, applicants seeking to construct new or expanded structures within the Seashore must now comply with both the federal zoning standards and the applicable zoning regulations of the local zoning authority.  In recognition of the concurrent Federal jurisdiction within the Seashore, the codes of the towns of Brookhaven and Islip have regulations that specifically pertain to properties within the Seashore.  See, Brookhaven Town Code, Ch. 85, Art. XVIII; Islip Town Code, Ch. 68, Art. XXXVIII.  Similarly, the Village of Ocean Beach has adopted regulations that largely mirror the Federal regulations that require that the Superintendent be provided with notice of applications for building permits and certain zoning applications, as well as notice of final actions taken on said applications.  See, Ocean Beach Village Code § 164-4.

To protect their property from the risk of future condemnation, applicants seeking to construct, reconstruct or alter structures within the Seashore, and their consultants, should take the time to carefully review the Federal standards, as well as the local zoning regulations.  They should also closely monitor the processing of their application to ensure that the local zoning authority has properly referred the building permit or zoning application to the Superintendent of the Seashore.

Owners of property within the Seashore who have questions about the process should visit https://www.nps.gov/fiis/learn/management/federal-review-building-zoning-permits.htm or contact the local National Park Service office at (631) 687-4750.

New York’s Freedom of Information Law (“FOIL”) mandates that agencies make all “records” available for public inspection and copying, subject to certain  exemptions. See, Public Officers Law.   The presumption under FOIL is that the public has a right to access “records” maintained by an any agency, because “the Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy” See, Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, [2005].

With an eye towards this public policy, the Second Department, in Fanizzi v. Planning Bd. of Patterson, 146 AD 3d 98 [2d Dept 2016], recently held that even an informal submission only temporarily possessed by an agency and later withdrawn by the applicant is subject to FOIL, if the records were sought during the time when they were kept by that agency.

In Fanizzi, the developer left draft architectural renderings in the possession of a town planner for a little over a week.  The planner discussed the renderings at the meeting of the Planning Board that took place a week later.  During that time, a civic leader who had been monitoring the proposed development, attempted to review this material, but was denied by the Town, because the developer had not formally submitted the renderings.  Not surprisingly, the civic leader commenced an Article 78 to compel the release of these draft plans.

In granting the Town and developer’s motions to dismiss, the lower court reasoned that architectural renderings informally submitted by the developer were not agency “records” within the public’s purview of FOIL.  Reversing the lower court, the  Appellate Division found these renderings were in fact kept and held by an agency and therefore, “records” subject to review pursuant to FOIL.  The court held that the definition of “record” is not limited by the purpose for which a document was originated or the function to which it relates.  The fact that the developer did not formally submit the renderings as part of an application for approval of an amended site plan was irrelevant.  As the court stated: “to hold otherwise would allow agencies to frustrate the purpose of FOIL by discarding records when they receive FOIL requests.”

Practice  Tip Commentary:  Once an applicant’s documents are submitted to an agency, even drafts, they are immediately subject to public scrutiny under FOIL.

Last month, the Appellate Division, Second Department, issued two interesting opinions concerning parking. One involved a parking variance and the other involved a restrictive covenant.

Here are the details!

No Parking

In Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 N.Y. Slip Op. 006643 [2d Dept September 27, 2017], a restaurant leased property at 340 Sunrise Highway. It was going to demolish an existing structure and replace it with a 5,400 square foot restaurant. The Village Zoning Code required 54 off-street parking spaces for the proposed restaurant. It had none.

The same landlord owned the adjoining property, 330 Sunrise Highway. The restaurant tenant proposed a merger of the two lots in order to take advantage of an exception in the Village Zoning Code that essentially allowed a municipal lot to substitute for the off-street parking for “interior restaurants that abut municipal parking fields.” The 330 Sunrise Highway parcel abutted a municipal parking lot, 340 Sunrise Highway did not.

A building permit was issued for the restaurant based on the merger representation. Just as the construction was nearing completion, the Building Department learned the merger of the two parcels never occurred. The Building Department refused to issue a certificate of occupancy until the restaurant obtained a parking variance. The restaurant entered into a license agreement that gave it access to 40 exclusive parking spaces next door from 4 PM to 12:30 AM weekdays. The parking variance was granted by the zoning board but the board imposed restrictions on the restaurant’s operating hours, tying them to the hours in the license agreement. It also required mandatory valet parking. The restaurant was unhappy with these restrictions and sued.

Although the restaurant prevailed at the trial level, it lost at the appellate court, which found that limiting the hours of operations to coincide with its access to the 40 parking spaces was proper. The restriction was aimed at protecting surrounding businesses and the expected increase in traffic congestion and parking problems.

Parking

In Fleetwood Chateau Owners Corp., v Fleetwood Garage Corp., 2017 NY Slip Op. 06431 [2d Dept September 13, 2017], the owner of an apartment building sued a commercial parking garage located on an adjoining parcel to enforce a restrictive covenant contained in a 1924 deed. That restrictive covenant prohibited the construction of nonresidential structures including garages unless the garages were for the exclusive use of occupants of any building built on the property.

In 1929, an apartment building was built on one part of the property. In 1931, a private parking garage was built on another part of the property. The entire site was sold at least twice after that. When the entire site was sold in 1988, the deed failed to mention the 1924 restrictive covenant.

The next purchaser subdivided the property. In 1990, the apartment building portion of the property was sold to Fleetwood Chateau Owners Corp. In 1991, the parking garage portion of the property was sold to Fleetwood Garage Corp. which intended to use it as a commercial parking garage.  Neither of these deeds referenced the 1924 restrictive covenant. Neither Fleetwood entity was a party to the 1924 deed nor mentioned in it as a beneficiary.

The Court noted that restrictive covenants, which place restraints on servient properties in favor of dominant parcels, are strictly construed against parties seeking to enforce them as they encumber the use of real property. The Court further noted that since it was not a party to the 1924 deed and was not mentioned in the deed as a beneficiary, Fleetwood Chateau Owners Corp. had to demonstrate the existence of a common plan or scheme of building development in order to enforce the restrictive covenant.

The Court found that there was no common development plan created for the owners of the subdivided lots.   The Court found no evidence that in 1924, when the land was sold as one parcel, that there was any obligation to subdivide the site. As a result, the Court found that “the covenant cannot be said to have benefitted any part of the land burdened by it.” The Court reasoned that the common grantor to the Fleetwood entities had owned the entire site and was free to do whatever it chose with the property except as against the 1924 grantee who had placed the restriction in the 1924 deed or those that “stood in his shoes.” As the Fleetwood entities solely derived their interest from the 1990/1991 grantee, and their deeds did not contain any restrictive covenant, “the original covenant is not enforceable as between” them. As a result, Fleetwood Chateau Owners Corp. had no standing to enforce the covenant and the parking garage was able to continue operating.

Note:  Law clerk Joanna Lima assisted in drafting this blog post.

Courts have recently expanded what constitutes religious conduct. In particular, in Matter of Sullivan v. Board of Zoning Appeals of City of Albany, 144 A.D. 3d 1480 (3d Dep’t 2016), an appellate court ruled that the use of a portion of a church parsonage for a “home base” for up to 14 homeless individuals was a permissible use of a “house of worship.”

Respondent Bethany Reformed Church owned certain real property, including a sanctuary, an educational and social building, a parsonage, and a parking lot, all of which were located adjacent to petitioner’s property. The properties were located in a residential district, which permitted, among other uses “houses of worship.” The Code of the City of Albany defined “houses of worship” as “a structure or part of a structure used for worship or religious ceremonies.”

The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals who were not attending school, enrolled in training programs or working at their current jobs. The City’s Building Department told the Church that it needed a use variance or special use permit as the proposed use did not appear to be for a religious purpose.   The Church then sought an interpretation from the Board of Zoning Appeals as to whether this intended use was permitted within the zoning district. The Board found that the Church’s intended use was consistent with “the mission and actions of a house of worship…” and did not require a variance or special use permit.  Petitioner brought a proceeding to annul the Board’s determination.

The Supreme Court, County of Albany, did not agree with the Board’s interpretation and annulled the Board’s decision, finding that the proposed use for the parsonage was not reasonably consistent with the term, “house of worship.” The Church appealed.  The Appellate Division reversed the decision of the Supreme Court, noting that, generally, “a zoning board’s interpretation of a zoning law [] is afforded great deference and will only be disturbed if it is irrational or unreasonable.”  An exception to this standard is where the issue is a pure legal interpretation of the zoning law.  Moreover, where a term is not defined by a zoning law, courts can apply the term’s ordinary meaning and that “any ambiguity in the language employed must be resolved in favor of the property owner.”

The Third Department first explained the rules applicable to judicial deference of municipal decisions, whether the issue presented was fact-based warranting judicial deference to the Board’s interpretation or a pure legal question excepting such deference.  Interestingly, the Appellate Division did not apply these rules in its reversal of the lower court.  The Appellate Division held that, regardless of the analytical approach, the Board’s interpretation should be upheld.  The Court noted that the term “worship” was not defined in the applicable zoning law, so the Appellate Division chose to use its ordinary meaning. The Court, relying on the dictionary meaning of the term, determined that the ordinary meaning of “worship” is defined as “any form of religious devotion, ritual, or service showing reverence – especially with respect to a divine being or supernatural power” and also includes “an act of expressing such reverence.” Noting that previous courts have been flexible in their interpretation of religious uses under zoning ordinances and did not limit religious uses solely to mean a house of prayer, the Court found that services to homeless individuals constitute religious conduct because acts of charity play a significant role in religious worship.